Kiley A. Carter v. Office of Personnel Management
Background
- Appellant Kiley A. Carter appealed OPM’s denial of his application for disability retirement; an MSPB administrative judge reversed and ordered OPM to grant the application.
- After the initial decision became final, Carter moved for an award of attorney fees for work on the appeal.
- The administrative judge issued an addendum initial decision denying the motion for attorney fees and found Carter had not established entitlement.
- The Board denied Carter’s petition for review of the addendum initial decision and affirmed the denial of attorney fees.
- The Board explained it cannot award fees for work by nonattorney representatives absent an attorney-client relationship and found no other basis for fees.
- The Board forwarded Carter’s separate claim that OPM miscalculated his annuity to the regional office as a potential petition for enforcement (compliance matter).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to attorney fees for nonattorney representatives | Carter sought fees for work performed by his nonattorney representatives | OPM opposed fee award; Board rules require attorney-client relationship for fees | Denied — fees for nonattorneys not recoverable absent attorney-client relationship |
| Entitlement to attorney fees generally | Carter argued he was entitled to fees after prevailing on appeal | OPM disputed entitlement and sufficiency of evidence | Denied — Carter failed to provide evidence or legal basis entitling him to attorney fees and costs |
| Compliance/enforcement re: annuity calculation | Carter contended OPM miscalculated his disability annuity | OPM presumably disagreed; matter not resolved in fee proceeding | Forwarded to regional office as petition for enforcement (docketed separately) |
| Reviewability of addendum decision | Carter sought Board review of denial of fees | Board reviewed under 5 C.F.R. § 1201.115 standards | Petition for review denied; addendum initial decision affirmed |
Key Cases Cited
- Holmes v. Office of Personnel Management, 99 M.S.P.R. 330 (MSPB 2005) (attorney fees require an attorney-client relationship)
- Brenner v. Department of the Interior, 119 M.S.P.R. 399 (MSPB 2013) (nonattorney representatives do not establish attorney-client relationship for fee awards)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court generally lacks authority to waive statutory filing deadlines)